Land and Environment Court of New South Wales CITATION : Abdo v Wyong Shire Council [2004] NSWLEC 176 APPLICANT PARTIES : Leba Abdo RESPONDENT Wyong Shire Council FILE NUMBER(S) : 11213 of 2003 CORAM: Nott C KEY ISSUES: Development Application :- proposed five residential flat buildings containing 40 units - actual zoning 2(e) - what is an overdevelopment? - density of development more akin to 2(c) zone - inadequate facilities in the locality LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 CASES CITED: DATES OF HEARING: 01/03/04 - 03/03/04 EX TEMPORE 03/03/2004 JUDGMENT DATE : APPLICANT Mr A J J Thompson, barrister SOLICITORS Bowen & Gerathy LEGAL REPRESENTATIVES: RESPONDENT Mr R K Graham, solicitor SOLICITORS Abbott Tout JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11213 of 2003 Nott C 3 March 2004 Leba Abdo Applicant v Wyong Shire Council Respondent Reasons for Judgment 1. This is an appeal against the council's refusal of a development application to erect five residential flat buildings at the corner of the Pacific Highway and Figtree Boulevard, Wadalba. These five residential flat buildings are of two storeys in height over a basement carpark. It is proposed that there be a total of 40 units comprising 28 two-bedroom units and 12 three-bedroom units. Carparking was proposed for seventy five vehicles including visitor spaces. 2. The architectural plans showing the proposed development are the eight sheets (exhibit A) as amended by the carparking plan dated 1 March 2004 (exhibit L). Although an earlier landscaping plan had been provided, it did not relate to the present application but to an earlier proposal for the subject site, and just prior to the commencement of the hearing new landscape plans were provided being sheets LO1, LO2 and LO3, revision A (exhibit B). During the hearing there were some further small amendments apart from the carparking layout plan and the amendments related to a children's play area as shown on a detailed A4 plan (exhibit N). 3. The subject land has an area of 5,818 sq m. The Pacific Highway abuts the northern boundary of the subject site and the eastern side of the site has a frontage to Figtree Boulevard. The site is at an important or gateway position to the proposed residential and local centre development of Wadalba, which is a developing centre in a semi-rural locality. 4. The Wadalba locality is located between Wyong to the west and Wyongah to the east. About 3 km by road to the northwest is Warnervale railway station. 5. The subject site is bounded on the west and on the south by a drainage reserve. On the opposite side of Figtree Boulevard there is also a large vacant block of land owned by Woolworths. Roads have been laid out on the land to the south of the subject land but there is in effect no development on four large blocks about the size of the subject land before one comes to another small block to the south which contains 12 new terrace houses. 6. Further to the east beyond these vacant blocks is the Wadalba community school, which apparently serves not only the residential population of Wadalba that I will refer to shortly but also other new residential areas that are springing up further from the subject land. 7. Immediately to the south of the school site are about 130 lots which have been developed for single dwelling houses, some single storey and others two storey, and one residential flat building containing three dwellings. The vacant blocks immediately to the south of the subject land are part of what is intended to be the Wadalba Local Centre, more particularly indicated in Development Control Plan No. 49, Warnervale East and Wadalba Northwest. I will return to a consideration of the planning instruments in a moment. 8. The current development application was lodged in May 2003. It was recommended for approval by the council's director of health and development and by the council's development management panel and development assessment panel. However, at its meeting on 13 August 2003, the council resolved to defer the matter pending exhibition of the proposal for a further 28 days. A public meeting was held at the Wadalba community school on 8 September 2003 when approximately 85 local residents attended and raised overwhelming opposition to the proposed development. 9. During this exhibition period, council received 37 submissions of which 36 were objections from local residents and there was a petition against the proposal containing over 300 signatures. 10. A further report was prepared for the council by the council's director of health and development recommending approval. However, by a notice of determination dated 3 December 2003, the council resolved to refuse the application for the following reasons: 1 a. non compliance with DCP 49. b. non compliance with DCP 64 including: (i) 27% over-density (ii) setbacks (iii) lack of high architectural quality (iv) not compatible with the objectives of the zone particularly in regard to scale and appearance (v) inadequate landscaping (vi) visually obtrusive (vii) proposed variations to DCP 64 adversely impacting local residential amenity (viii) the proposed variations will increase development potential c. inadequate and incorrect plans have been submitted for assessment d. inadequate landscaping plan e. inadequate details on noise amelioration f. insufficient attention to safety by design g. social impact h. views i. negative impact on local amenity j. such other reasons as council's solicitors may deem reasonable to support such a refusal 2 Council refuse [sic] to grant any easement or right of way over the drainage reserve. 11. At the hearing, evidence for the applicant included evidence from consultant town planner Mr C King, chartered architect Mr J Moorcroft, and landscape architect Mr P Williams. 12. For the council evidence was given by chartered architect and town planner Mr S Layman. At the site inspection, by consent of the parties, I heard evidence from Mr T Scheitel who is President of the Lakes Precinct Community Committee and from another resident, Mr L Hensby. 13. The subject land at the time of the development application was zoned multiple dwelling residential 2(b). One of the objectives of that zone is (a): to cater for a wide range of housing types essentially domestic in scale and character and generally not exceeding a height of two storeys. However, on 28 November 2003 the zoning of the subject land and of large tracts of adjoining land was changed to residential 2(e), urban release area zone. The objectives of this new zone included the following: (a) to cater for a range of housing types appropriate to a greenfield urban release area and not exceeding a height of two storeys, (b) to ensure development includes appropriate water sensitive urban design. 14. In each of these zones, the former 2(b) zone and the current 2(e) zone, residential flat buildings are permissible with consent subject to the development being compatible with the objectives of the zone. 15. Insofar as the zone objective relating to the 2(b) zone required housing types to be essentially domestic in scale and character, it seems to me that there would be a good argument in support of the proposition that the proposed development would not have been compatible with that objective. 16. All residential development is of course domestic in the sense that a household of persons will occupy one or more of the dwellings. However, to give a reasonable application to the meaning of objective (a) of the 2(b) zone, it seems to me that the reference to housing types essentially domestic in scale and character directs ones attention more to the scale and character of a single household. The proposed development comprising five residential flat buildings and forty units does not appear to be in character with that object. 17. However it is not necessary for me to make a definite finding in that regard because the zoning of the land has changed and there is the new objective I referred to earlier. 18. Because the new objective is in very broad terms, it could not necessarily be excluded in my opinion that a residential flat building or buildings of the type proposed would be incompatible with the objective of the zone. However, whether however, a proposed development in a particular case is appropriate is a matter for consideration in the light of the provisions of the development control plans that might apply and generally under s 79C of the Environmental Planning and Assessment Act 1979. 19. I turn then to a consideration of DCP 49. This DCP applies specifically to the Wadalba proposed local centre as well as to immediately surrounding lands including the housing to the south of the school and the school site. 20. Attached to DCP 49 is a plan entitled Wadalba Release Area Development Concept dated March 2002. The subject land and the adjoining large site on the opposite side of the boulevard are cross-hatched. There is a notation that indicates a service station subject to re-zoning for the subject site, and the site on the opposite side of the boulevard has the notation motel/medium density housing. Immediately to the south of these two large sites, as I mentioned, are the vacant blocks which together with the 12 townhouses comprise the local centre. This local centre is supposed to be a village centre with mixed use, retail, commercial, residential and recreational uses. There is indicated within block C, immediately to the south of the subject land in the south-west corner of that block, community facilities which are unspecified. 21. Block A under DCP 49 which is the subject land is not specifically dealt with except in the concept plan to which I have referred. However, other blocks to the south of the subject site are specifically dealt with. Along the boulevard and generally in blocks C, D, E, F G and H it was envisaged that as regards residential development it would be in the form of terrace houses, each dwelling addressing the street and each having a private courtyard or garden at the rear. Vehicular access to these townhouses was to be provided from a rear lane. 22. In the local centre of Wadalba, DCP 49 provided for a minimum of 25 dwellings per hectare for residential development. There was no maximum specification. However, this DCP has to be read with other DCPs. 23. Prior to the recent November 2003 amendment to the LEP, DCP 64 Residential Development applied to the subject land and to other properties that were then zoned 2(b). This DCP also applied to other residential zones. 24. Because apparently there was no residential 2(e) zone previously, there was no DCP in force at the time of the amendment to the LEP relating to residential development in the 2(e) zone. However, the council has resolved to make a development control plan relating to that zone and that DCP according to the evidence goes on public exhibition today. 25. Tendered in evidence was draft revised DCP 64 Residential Development which apparently is the DCP that is to be publicly exhibited. As far as I can tell from the revised DCP 64 in its draft form, the provisions are the same as the current DCP 64 except that where provisions of the DCP merely referred to the 2(b) zone, now the revised draft DCP refers also to 2(e). 26. I propose to give some weight to this draft DCP as a guide to development on the subject site particularly having regard to the largely undeveloped tracts of land in and around the Wadalba local centre. I also note that DCP 64 applied at the time that the development application was lodged. 27. Under the draft revised DCP 64, the objective of the 2(b) and of the 2(e) zone is to have 100 persons per ha. A two-bedroom dwelling on average has an occupancy ratio of 2.4 persons per dwelling and a three-bedroom, 3.3 persons per dwelling, according to cl 5 of the DCP. Applying those figures to the proposed development, the proposed development achieves 183.6 persons per ha, well in excess of the goal of 100 persons per ha. 28. The objective for the 2(b) or 2(e) zone as stated in DCP 64 (and I will be referring to this DCP in its revised draft form from now on) is to allow for a wide range of housing types generally not exceeding two storeys, essentially domestic in scale and character but higher in density than the single-storey detached and low-density housing of the 2(a) zone. 29. The types of development to be encouraged in the 2(b) or 2(e) zone are villa houses, townhouses, integrated housing and cluster housing. Each of these types of development has a particular meaning having regard to the provisions of the LEP and DCP 64. As I mentioned DCP 64 refers to other residential zones. In the 2(c) and 2(d) zones, medium or high residential flat development is encouraged. 30. Under cl 5 of DCP 64, a two-bedroom unit is required to have a site area of 180 sq m and a three-bedroom unit, 248 sq m. Applying those figures to the proposed development, an area of 8016 sq m of land would be required. The subject site has an area much less than that, being 5818 sq m. The mixture of three-bedroom and two-bedroom units in the proposed development is 30% three-bedroom units and 70% two-bedroom units. Applying approximately the same proportions to a development that would only to a minor extent exceed the site area requirement, a maximum of 29 units only could be erected on the subject site being for example, 9 three-bedroom units and 20 two-bedroom units, which would require an area of 5832 sq m. Such a proposal which would practically comply with the requirements of cl 5 of DCP 64 would generate a population per ha of 133.6 persons. 31. Returning briefly to DCP 49, as I mentioned a minimum number of dwellings were to be achieved per hectare of 25 dwellings. If a development of 29 units was proposed on the subject site, that would equate to almost double the 25 dwellings and would result in 49.8 dwellings per ha. The proposed development is equivalent to 68.7 dwellings per ha. It is a requirement where possible to read plans together and if the draft revised DCP 64 comes into effect, then there would be compliance with the minimum requirement of DCP 49 by a significant margin and there would be still the ability to comply with the maximum requirements indicated in DCP 64. To come under the maximum site area specified by cl 5 of DCP 64, it would be possible to achieve 29 units with a mix of 21 two-bedroom units and 8 three-bedroom units. 32. A constant reason for opposing the proposed development running through many of the written submissions was that the proposed residential flat buildings would be out of keeping with what was envisaged and what the residents believed would be developed in the locality. Many of the residents refer to the lack of facilities available. There is no swimming pool, no tennis court, no petrol station or village shop. Almost two years has passed since A and J Guider purchased their property and none of these facilities have been established. They indicate in their written objection that on the weekend and during school holiday time, they see a lot of children and young people sitting in their front yards or wandering around the streets as they have nothing to do. 33. Another objection refers to the need for every estate to have recreational space but that in the estate of Wadalba children play in the street. The objection on behalf of the Lakes Community Precinct Committee referred to the Wadalba community experiencing problems with increased vandalism (social behaviour), transport infrastructure and services. 34. An objection from residents in Manchurian Way, Wadalba stated: Our feeling is that these types of dwellings [as proposed in the present application] only become viable when they are built close to a large range of amenities. In this case they only have the benefit of a single bus route. As an example of the viability, there is a small complex of three units in the estate where one of them has been on the market for close on twelve months . That is apparently a reference to the one residential flat building situated among the 130 or so dwelling houses I referred to earlier. 35. Insofar as DCP 64 refers to housing of an essentially domestic character, that three-dwelling residential flat building on a corner opposite the school would appear to have a domestic character in scale, consistent with the other dwellings surrounding it. 36. It was the submission of the council that the proposed development is an overdevelopment. 37. In my opinion, whether something is an overdevelopment or not depends on a number of factors including a comparison with the relevant planning instruments and a comparison with the surrounding development and in this particular case, the adequacy of existing facilities for the needs of residents. At the present time, the facilities and amenities are to a large extent non-existent, which would tend to indicate that the proposed development is an overdevelopment. I take into account of course that this is an urban release area and it could well be that further facilities will be provided. In particular, in block D there is a development application before the council for two retail buildings and a townhouse residential development together with associated parking. 38. Reference was made to the 7(a) contributions plan, which indicated that top priority in the provision of facilities was the provision of a school and playing fields. A school has been provided and this school, as I mentioned, seems to be well attended and to have a school-children population coming from well beyond the confines of the houses in the immediately adjoining residential area. Residents have complained about the chaotic traffic conditions in the peak hour relating to the commencement and to the end of school hours. 39. The playing field adjoining the school is fenced off from public use, and the evidence of Mr Hensby is that that playing field is not available for private use by residents in the locality, as would be a public park for example. 40. It is not always the case that facilities are provided in accordance with contributions plans for one reason or another. In the present case for example, there has been a change to the proposed use of the subject land from that which was formerly indicated in DCP 49. Community facilities are shown in DCP 49 but there is no evidence to suggest that any of the land is in public ownership, and it seems there is no requirement for the provision for those facilities except as provided in DCP 49 which envisages that before there is a release of lots in excess of 200, certain facilities have to be provided. 41. Looking at the development concept plan referred to in DCP 49, the closest small designated park to the subject land is about 650 m away. One has to walk in an easterly direction from this park which adjoins a drainage corridor to the boulevard and then walk north down the boulevard to the subject land. 42. A bus service does run on the Pacific Highway but it is not like a bus service that would run between St Leonards and the City. This stretch of the Pacific Highway in part runs through semi-rural areas and also through developing urban release areas. According to Mr Hensby there is a bus service about once an hour. I have no other evidence about the bus services. 43. The proposed development having 40 units could well have been designed for a residential 2(c) zone which envisages a much higher density than the 2(b) zone and a much higher density than the 2(e) zone as foreshadowed in the revised draft DCP 64. Such a development perhaps might be appropriate in a 2(c) zone close to a railway station. 44. The subject site is located in what would be a prominent location at the entry to the Wadalba local centre and residential development beyond. This was put forward by the development management panel as one of the reasons for approving the proposed development but equally, it seems to me, such a prominent location could be a reason for approving a less dense development on the subject site. 45. The proposed development is detailed in the plans that I have referred to. The architectural plans contained a number of inaccuracies. Recognising these inaccuracies, the applicant apparently instructed the landscape planner to provide more detail and more accurate levels concerning buildings and finished levels than appear on the architectural plans. Nevertheless, there is still a conflict between the landscape plans and the stormwater concept plans. The plans prepared by Mr Williams would indicate that the residential development now proposed would be adequately screened around its perimeter by the extensive number of trees provided and also there would be screening internally within the proposed development. 46. Because of the number of units, some of the buildings have setbacks less than the 12 m specified in DCP 64 between buildings. Certain provisions of AMCORD are applied by DCP 64, but DCP 64 states that AMCORD only applies where there is no specific provision in DCP 64. In this particular locality, I think it is appropriate that there be greater separation between buildings as indicated in DCP 64 than the separation indicated in AMCORD, which is 9 m. 47. There can be some overcoming of the lack of separation by the deletion of balconies or other changes, however the proposed development in the context of surrounding lands is a dense form of development approaching a density more akin to the density of the 2(c) zone. Because of the number of units proposed, there are no suitable recreational facilities of a sufficient scale for the intended population on the subject site, and in this regard I depart from the views expressed by the council's officers. Their views of course have to be taken into account, but the Environmental Planning and Assessment Act 1979 entrusts to the consent authority the role of determining an application. In matters of amenity and in many other matters, the councillors are quite well-equipped to decide these matters about which clearly there can be differences of opinion. No doubt the councillors were influenced by the large numbers of objections to the proposed development because of its residential flat building character, which is out of character with other residences in the locality. In the public interest, it is nevertheless a relevant consideration to take into account the desires and wishes of other members of the existing community. 48. Although a children's play area is provided, that would only meet the needs of smaller children, and there is no larger area where older children can readily play apart from going on the street. There is proposed an area on the western side of the site, which on the landscape plans appears to be relatively flat and which could be used for example for playing shuttlecock or ball games, but at the present time that area is a drainage gully and it would have to be fenced off for the protection of children. However, having regard to evidence presented from engineers Johnson Partners (exhibit 15), it would appear that a width of at least 3 m on that western side of the proposed buildings could be made flat, and about 3.5 m from the boundary of the subject land, it is envisaged according to a plan annexed to the Johnson Partners report that the bank of the drainage easement would begin to drop away. So there is limited opportunity on the subject site for active recreation. 49. The council planners referred to the fact that about 54% of the site is open space. But about 450 sq m of that open space is in the western drainage easement. Other areas are around the perimeter of the site. Other areas are between the buildings. Between the buildings however, it is proposed to have main thoroughfares and, in order to provide screening from the walkways towards the units, it is proposed to have mounding. The mounded areas in some cases are 2.5 m wide for larger trees, together with a lower landscaped area roughly 2 m wide immediately adjoining the facades of the buildings. So from a landscape point of view, a somewhat attractive but rather congested environment would be provided interiorly and around the proposed development. 50. Because this is a large site, it is important in my opinion to not set an adverse precedent for other sites in the locality. Many parcels of land or at least large tracts of land are similarly zoned residential 2(e). Some of those areas would also be close to planned retail shops, if they are established; in particular the blocks that are more or less to the south-west of the subject land. One also has to have regard to the provisions of DCP 64 relating to the domestic scale and character of housing. Although there can be a departure from that requirement, which is not in an LEP but in a DCP, the proposed development in many respects would appear to be contrary to a domestic scale and character generally achieved by single dwelling houses. 51. The council planners who reported upon the matter as well as the experts who gave evidence in these proceedings did not oppose the provision of residential development on the subject land, and I see no reason why residential development could not also be provided on the subject land. I give no weight to DCP 49 insofar as it designates the subject site is to be used as a petrol station, subject to re-zoning. The council had the opportunity to re-zone the subject land for purposes other than residential but did not do so in its most recent amendment in November 2003. 52. An important matter for any development on the subject land is the provision of vehicular access. The council's development management panel was of the opinion that it is inappropriate to have vehicular access onto the boulevard, and vehicular access onto the Pacific Highway is also prohibited under the DCP. Although vehicular access might be appropriate elsewhere along the boulevard, opposite the subject land the boulevard is a divided road having two lanes proceeding in one direction and two lanes in the other, so it would mean that any vehicles turning out of the subject land and wishing to proceed back towards the local centre would have to go out onto the Pacific Highway. It was for this reason apparently that it was not recommended that there be access from Figtree Boulevard. Instead, the development management panel suggested access could be over the drainage easement into a road which is now known as Settlers Road. It was recommended by council officers that the applicant be given a right of way over the drainage easement for a nominal fee. The reason for the nominal fee was that the drainage easement over which the access has to be provided was originally part of the subject land and apparently was dedicated free of cost to the council. 53. If the development had been otherwise acceptable, I would have exercised pursuant to the powers of the Land and Environment Court Act 1979 the council's power to grant consent to the development application, insofar as it related to the erection of a bridge over council's land. However, it is not possible for a Commissioner of the Court to grant an easement. If the council in respect of any future application does not freely grant an easement, it would be open to the owner of the subject land to apply to the Court under s 40 of the Land and Environment Court Act 1979 requesting the Court to order the granting of an easement. The easement I refer to is (as indicated by Mr A J J Thompson of counsel for the applicant) an easement for access or alternatively a right of carriageway. 54. In any redevelopment, regard could be had to the noise generated from the Pacific Highway. Buildings close to the highway could, in accordance with the acoustic report, be so designed that windows are closed at night or when persons were sleeping in bedrooms close to the highway, so that the occupants would not be unduly disturbed. An alternative method of dealing with noise would be to have mounding along the Pacific Highway with a fence above the mounding with the fence screened. Of course, the screening by landscaping would not materially affect sound penetration but the mounding and fence would certainly improve the acoustic environment for ground-floor levels of proposed dwellings on the subject site. 55. The subject site is a large site and it seems to me that there would be ample opportunity to provide a differently designed development. I would not exclude certain residential flat buildings containing a number of dwellings, subject to a suitable design. However, there are also other forms of housing that could be considered including cluster development, villa homes and townhouses. The advantage of having villa homes or town houses is that the occupants have ground-floor private courtyards generally speaking. 56. There were other matters raised during the hearing but in the light of my findings, I do not have to consider them in detail. 57. The orders of the Court are: 1. The appeal be dismissed. 2. The exhibits other than exhibits A, B, L, N, 5 and 7 may be returned. ______________ A J Nott Commissioner of the Court mp DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.